July 19, 2016

1. Call to Order

Mayor Martin Tully called the regular meeting of the Village Council of the Village of Downers Grove to order at 7:00 p.m. in the Council Chambers of the Downers Grove Village Hall.

Pledge of Allegiance to the Flag

Mayor Tully led those present in the Pledge of Allegiance to the Flag.

Mayor Tully asked for a moment of silence for the three police officers killed in Baton Rouge, Louisiana this past week.

2. Roll Call

Council Attendance (Present):  Commissioner Waldack, Commissioner White, Commissioner Vattimo, Commissioner Hosé, Commissioner Olsen, Commissioner Barnett; Mayor Tully

Absent:  None

Non-Voting:  Village Manager David Fieldman, Village Attorney Enza Petrarca, Village Clerk April Holden

The Council meeting is broadcast over the local FM radio station, WDGC. In addition, a tape recording and videotape of the meeting are being made using Village-owned equipment. The videotape of the meeting will be used for later rebroadcast of the Council meeting over the Village cable television Channel 6. 

The Council will follow the rules of conduct for this meeting as provided in Sec. 2.5 of the Downers Grove Municipal Code. These offer the public the opportunity to comment at several points in the meeting. First, immediately following approval of the minutes of past meetings, an opportunity will be given for public comments and questions of a general nature. If a public hearing is scheduled for this meeting, an opportunity is given for public comments and questions related to the subject of the hearing. Finally, an opportunity is given for public comments and questions on items appearing on the Consent Agenda, the Active Agenda and the First Reading. 

The Mayor stated that at the appropriate time the presiding officers will ask if there are any comments from the public. Individuals wishing to speak, should raise their hand to be recognized and, after acknowledgment from the presiding officer, approach the microphone and state their name. Remarks should be limited to five minutes, and individuals are asked to refrain from making repetitive statements.

Mayor Tully said there are agendas located on either side of the Council Chambers, and he invited the audience to pick up an agenda and follow the progress of the Council meeting.

3. Minutes of Council Meetings

MIN 2016-6918 - A. Minutes:  Council Minutes - July 12, 2016

Motion:  Commissioner Olsen, seconded by Commissioner White, moved to approve the minutes as presented.

Mayor Tully declared the motion carried by voice vote.

4. Public Comments

This is the opportunity for public comments.

1. Dr. Gordon Goodman, 5834 Middaugh, commented that, at the end of 2014, Good Samaritan Hospital came up with a general plan for its property.  He pointed out that Lyman Woods was not being protected per their agreement and he proposed at that time that the condition for granting approval to the hospital should include a provision for maintenance of the buffer zones.  The petitioner disagreed, as did the Council.  Dr. Goodman noted that it has been 1-1/2 years since that meeting.  There were discussions among the three owners of the Woods in 2015 but there still has been no agreement.  The Village Manager took the lead for the 2015 action, but said there is not enough staff capacity to follow up on this.  Mayor Tully then said that he would approach the Chief Executives.  Dr. Goodman asked as to the status of this, and how close they are today to protecting the buffer areas.

Mayor Tully replied that there have been discussions, and it has not been forgotten.  It is still on the list.

2. Bob Peterson, 6861 Camden Road, asked about the Maple and Main apartment complex.  He said it appears as though the front door is at the corner of Main and Maple and he asked how taxis or limos would pick up customers.  Regarding the underground parking, Mr. Peterson asked whether there are provisions for bigger cars.  He thinks that the parking needs to be seriously reviewed.  Mayor Tully replied that there is space on Maple for pick-up and drop off.

Mr. Peterson noted that the apartment buildings are not conforming to the area.  He thinks that the Sievers building is a nice looking and vintage-looking building.  The new buildings are a box and a plain Jane.  He asked about sample drawings that could be submitted with the plans.  Mr. Peterson said that he grew up in Downers Grove, and he talked about the many types of businesses that were in the Village as he grew up.  He thinks it is sad that so many things have gone away because big business chased them off.  The replacements are plain and simple.

3. Scott Curran, 4826 Stanley, came to thank the Village.  He spoke about having called the Village a few weeks ago to report a sinking of the parkway due to some work that had been done a while back.  The day after his call Public Works was there and dirt was added to the sunken area.  The neighbors are grateful for the work that was done.

Mr. Curran also thanked the Village for the work that made the Dick Van Dyke event happen and complimented Mayor Tully for his efforts. 

Mayor Tully thanked Mr. Curran for making sure that the event was held in Downers Grove.

5. Consent Agenda

COR 2016-6916 - A. Claims Ordinance:  No. 6167, Payroll, June 24, 2016

BIL 2016-6917 - B. Bills Payable:  No. 6276, July 19, 2016

MOT 2016-6915 - C. Motion:  Award $1,476,625.00 to Austin Tyler Construction, Inc., Elwood, IL, for 2016 Water Main Improvements Contract B (WA-028)

Summary:  This awards a contract for the 2016 Water Main Improvements Contract B (WA-028) to Austin Tyler Construction, Inc. of Elwood, Illinois in the amount of $1,476,625.00.

MIN 2016-6919 - D. Minutes:  Note Receipt of Minutes of Boards and Commissions

Summary:  Liquor Commission - June 2, 2016; Plan Commission - June 27, 2016

Motion:  Commissioner Olsen moved to approve the Consent Agenda as presented.  Commissioner White seconded the motion. 

Votes:  Yea: Commissioners Olsen, White, Waldack, Vattimo, Hosé, Barnett; Mayor Tully

Nay: None

Mayor Tully declared the motion carried.

6. Active Agenda

ORD 2016-6907 - A. Ordinance:  Authorize a Loan Agreement with the Illinois Environmental Protection Agency

Summary:  This authorizes a loan agreement between the Village and the Illinois Environmental Protection Agency for 2016 watermain replacements.   

AN ORDINANCE AUTHORIZING A LOAN AGREEMENT BETWEEN THE VILLAGE OF DOWNERS GROVE AND THE ILLINOIS ENVIRONMENTAL PROTECTION AGENCY

ORDINANCE NO. 5546

Motion:  Commissioner Olsen moved to adopt "An Ordinance Authorizing a Loan Agreement Between the Village of Downers Grove and the Illinois Environmental Protection Agency," as presented.  Commissioner White seconded the motion. 

Commissioner Hosé thanked staff for bringing this item forward.  From about the time he was elected, he urged the Manager to take advantage of this and he is happy to see that staff followed through on this and have saved the Village money.

Votes:  Yea: Commissioners Olsen, White, Waldack, Vattimo, Hosé, Barnett; Mayor Tully

Nay: None

Mayor Tully declared the motion carried.

RES 2016-6877 - B. Resolution:  Amend an Official Village Policy Regarding Ethical Standards - Exhibit 2

Summary:  This authorizes an amendment to an official Village Council Policy concerning ethical standards. 

A RESOLUTION AMENDING AN OFFICIAL VILLAGE COUNCIL POLICY REGARDING ETHICAL STANDARDS

RESOLUTION 2016-46

Motion:  Commissioner Olsen moved to adopt "A Resolution Amending an Official Village Council Policy Regarding Ethical Standards," as presented.  Commissioner White seconded the motion. 

Commissioner Waldack said he was happy to see this policy move forward and come to a conclusion.  The previous version was rushed through as a campaign promise and was purely optics.  This version is truly legal, enforceable and transparent and he thanked his fellow Council members for taking this on under New Business.  He also thanked Commissioner Olsen for working on this as well.  In addition, the Commissioner thanked Village Attorney Enza Petrarca for her efforts, saying he looks forward to the passage of this new policy.

Commissioner Hosé shared the sentiments expressed by Commissioner Waldack with regard to the constitutional infirmities of the prior policy.  He said that of the two main items remaining, the new paragraph #2 has been clarified and expanded upon for more transparency.  Paragraph #3 remains in its entirety and requires disclosure of any contributions from contractors to candidates or elected officials and requires them to agree, as part of a contract, not to make contributions.

Commissioner White said that the provisions in this policy that pertain to the State Board of Elections are counterproductive as written because under Illinois law any individual can raise up to $5,000 without reporting anything.  As to items 1, 2 and 3 they are nonsensical and should go.  He opposes the concept of vendor contributions, and anyone doing business with the Village should not be allowed to contribute to the Council.  Yet under the Citizens United decision, a rule that says that we cannot accept contributions from vendors is very likely unconstitutional.  However, a purchasing policy can say that the Village will not contract with people who give donations.  In his opinion, no one running for office should solicit Village employees, as that is wrong.  Nor should they accept donations from anybody seeking to sign a contract or do business with the Village.  

Commissioner Barnett stated that he totally disagrees with this.  This does not compel anyone to keep a campaign open.  The resolution states that elected officials have to comply with Article 9 of the Election Code, "Disclosure and Regulation of Campaign Contributions and Expenditures."  Those accounts can be closed.  When they are closed, one is not compelled to file again until you have exceeded some thresholds of revenue or expenditures.  An open account would be more transparent, but that is not what this resolution does.  The clear intent of this policy was to prevent or at least make clear that people should not be running for office perennially.  We have elections every two years.  The rules were written for residents and not against elected officials, and any changes should be made in light of the effect on residents.  The intent is not to solicit campaign funds from people doing business with the Village or employees, and only to solicit campaign funds for short periods of time, while campaigning.  He has not heard any reasons for change.  Commissioner Barnett said that the Village's expectations were higher than the State, and he thinks that is a good thing.  It was a little tougher for the Council, and was a self-imposed policy, which they can take or not take.  This is not a violation of federal law and there is no infringement of rights involved.  He does not want to lead from behind.  The Commissioner said the Village should keep its expectations much higher than everyone else.  He thinks they were breaking new ground in 2007 when this was envisioned.  He still thinks the Village should act higher than these standards.  The enforcement of this is another issue and he doesn't know why this cannot be enforced.  He is unaware of any attempt to enforce this that has failed.  He cannot vote to lower the Village's standards, and he would be open to additional wording from his colleagues.  This is an elimination of expectations.

Commissioner Olsen responded that he thinks it is clear that the current policy is unenforceable and is a federal violation.  They are proposing to remove unenforceable language yet retain language about campaign disclosure, and through contractual language continue to prohibit vendors contributing to candidates and elected officials.  He said they have retained a policy that is enforceable and removed unconstitutional barriers.  He looks forward to supporting this, as this policy promotes transparency and ethical behavior.

Commissioner Hosé said he doesn't see this as a step back.  The expectations of the Council and those seeking office should continue.  He strongly believes that the people of Downers Grove will hold the Council or others in office accountable.

Commissioner White noted that the purchasing policy prohibits vendors from contributing to Council campaigns.

Mayor Tully commented that there is more heat than fire over this issue.  It has never been about ethics, but about campaign financing disclosure.  It is a misnomer to call this an ethical standard.  He has viewed this as a solution in search of a problem and he has seen consequences that didn't make a lot of sense over the years.  He does not see a prohibition against people circulating petitions for candidates on their own time.  He always thought this was mandatory and was surprised that they were referred to as guidelines.  The Mayor said they have removed some aspects of campaign financing provisions regarding opening and closing accounts.  He agrees that Council members or candidates should not seek contributions or signatures from employees.  He reviewed some of the points of the guidelines.  Members or candidates accepting contributions from vendors or would-be vendors would be in violation; however, the Village has a purchasing policy and disclosure statements that prohibit that action.  Council members have an obligation to disclose contributions.  He sees this as a refinement and not a step backwards.  This will not change ethical standards, and these rules can only apply to Council members.  He does not see that this will harm anyone.  This is not carved in stone and if there are additional refinements to be made in the future, that can be done.

Votes:  Yea: Commissioners Olsen, White, Waldack, Vattimo, Hosé; Mayor Tully

Nay: Commissioner Barnett

Mayor Tully declared the motion carried.

7. First Reading

ORD 2016-6900 - A. Ordinance:  Amend the Sale and Promotion of Alcoholic Liquor

Village Attorney Enza Petrarca explained that this Ordinance adopts State law regarding Happy Hour Provisions, and regarding Party Packages.  It also removes the prohibition of serving two or more drinks to one person at a time.  The Liquor Commission recommended adoption of this Ordinance.

RES 2016-6924 - B. Resolution:  Authorize a Standard Form Agreement with Williams Architects

Deputy Village Manager Mike Baker pointed out that this item authorizes a contract for architectural and engineering services with Williams Architects to provide for all design work involved in the Police Station renovation and addition project.  The scope, budget and funding sources have been discussed and identified in the Facilities Feasibility Plan.  The scope has been scaled back due to the Village's decision to enter into membership in DuComm and eliminate the need for the 911 dispatch center within the Police Station.  Williams Architects responded to an RFP process and was chosen based on its history of exceptional performance.

Commissioner Hosé asked whether staff is confident that the reduction in space is appropriate.  Mr. Baker said that staff is satisfied and will continue to review the needs during the design phase.

Commissioner Barnett asked what they see in terms of the process moving forward.  He inquired whether this is a general bid, includes the hiring of a construction manager, and how it relates to Williams Architects' scope. 

Mr. Baker said that the contract calls for a construction manager, and that contract is moving forward now.

MOT 2016-6914 - C. Motion:  Authorize a Reduction in Required Cash-in-Lieu Donation to the Park District from $483,491.40 to $373,325.40 for 5100 Forest Avenue

Stan Popovich, Director, Community Development, explained that this concerns an 89-unit apartment complex proposed for property located at 5100 Forest Avenue.  The developer is required to pay Park District and School District donations and the total required is $544,000, with approximately $483,000 going to the Park District.  The Subdivision Control Ordinance allows for a reduction in these fees if the developer is providing amenities.  The petitioner is proposing an outdoor space in the complex and it is based on that space that the petitioner is requesting a reduction in the donation to the Park District to $373,000. 

1. Drew Mitchell, developer of the site, said they are on the verge of getting started with this project, and they have worked hard to identify a plan that works.  This has been a long time in the making.  He explained the background work done with the Village Council and staff to create a development that is consistent with the Comprehensive Plan, fits the downtown area, and works from an economic standpoint.  Since that time they have been before the Council and have worked on the construction drawings.  One of the challenges they had was that they showed a beautiful building to the Council, and the donation fees were initially calculated at $145,000 for this project.  The fees are based on numerous factors, including the number of children, open space, park space for residents, etc.  He said that their intent is to maintain a level of park space on a per capita basis; however, the challenge they are faced with is that the site has been vacant for ten years.  He is having trouble making the project work.  He noted that when the process began fees were about 300% less than they are now.  He doesn't want to take money away from the Park.  In the 2016 budget, the Park District fee is 11 times what it was when this project began.  Mr. Mitchell said they are asking for a modest reduction in the fee.

Mr. Mitchell explained that they have designed an outdoor amenity that reduces the use of Park District facilities.  He described the deck they are planning and showed a drawing of the plan for the deck.  Mr. Mitchell said he feels the $373,000 is a reasonable and fair fee to the Park District.  He reviewed a letter from the Park District and said he disagrees with their interpretation of the Ordinance.  The Ordinance says that when an owner provides their own open space for recreational facilities, they may, at the option of the Village Council, have a reduction in the fee for recreational space.  He asked the Village Council to consider their request for a fee reduction in order to give him every dollar he can to get the building moving forward.

Commissioner Olsen asked staff about payment in lieu of donations.  He said that in discussing the nature of this fee, he understands that the total payment to schools and Park District is somewhat more than $500,000.  The vast majority of this amount goes to the Park District, and he asked the rationale behind the Village's Subdivision Ordinance.

Village Manager Dave Fieldman replied that like all Subdivision Ordinances throughout the country, subdivisions are required to donate land to park and school districts to provide a certain amount of space per capita basis or per student basis. These calculations were originally done in the 1980s by the City of Naperville.  Commissioner Olsen asked about the calculations, and Mr. Fieldman said calculations are based on an acre of land or per bedroom basis.  They apply a fair market value of land to turn the donation into cash.  In 2014 the Village increased the value of land, which explains the increase in contributions in this situation.  Commissioner Olsen asked if the value of land is defined in the Ordinance, and the Manager said that was correct; however, the Ordinance is not updated automatically.  Commissioner Olsen then asked for clarification that the increase in costs is due to a change in our fees, and the Manager responded that was correct, and the changes are driven by the change in land value.  The table of the land donations has changed slightly since the 1980s.  The Village updated the table based on research at that time.  Commissioner Olsen noted that the Park District donation is very large, and the Manager said that they do not see a demand in space in schools, but in Park District use.  The figures are based on the housing unit type and the number of bedrooms.  If this were single-family homes, it would drastically change the amount of Park District fee to School District fee.

Commissioner Barnett asked what the timing of the change was, and Mr. Fieldman said that the change took place in 2014 in conjunction with the Subdivision Ordinance rewrite.  He stated that staff informed all developers of the change.  Commissioner Barnett asked if that was done after the developer came before the Village, and Mr. Fieldman said developers were contacted.  Commissioner Barnett then asked the petitioner whether this was something he had not planned on.

Mr. Mitchell replied that he was made aware of the change in May 2015 and came before the Council in June 2015.  They had already set a budget by that time.  He noted that when they came before the Council they intended to seek Council consideration for relief.  By the time they got approvals, this Ordinance had been passed.  But they had already done budgetary work.  He said that he does not like to come before the Council and request reducing the Park District fees; however, this was a much higher increase than planned.  He said that the Council does have the option to reduce the donation based on the owner providing open space.  He reviewed many of the issues they have with the location including ADA requirements and additional parking requirements.  He hoped that the Village would approve a $100,000 reduction, which would still result in them paying a sizable fee to the Park District.

Commissioner White said that he remembers that the caveat was presented by the petitioner.

Commissioner Barnett commented that there is a large value to the downtown and the Village's broader finance structure in general.  He is inclined to try and find a way to work this out, although he doesn't know how right now.  He thinks this is a reasonable request, but would like to explore some type of performance to it. 

Commissioner White remarked that he is not sure this is a case for an exception, and is not sure how he can support this request and not other requests.  He does not have the background on how the Park District donation was calculated and said he would like to consider whether the calculation was fair. He noted that the Park District is getting a very lucrative donation in all instances.  He is prepared to consider whether the donation system is fair in general.

Commissioner Hosé asked about the timing of the plan.  Mr. Mitchell referenced an email to Mr. Popovich that was made available to the Council in their packet.  He said they had engaged an architect with a schematic design and brought it into the Comprehensive Plan to make a project fit in that specific piece of property.  They were caught by surprise and opted to keep a door open so they could come back and make this request.  They have a lot of money tied up in this specific site.  He showed an architectural drawing of the site, and said he has a great deal of anxiety about completing the project because of the availability of subcontractors, etc.  He thinks this is a very special outdoor space but can't afford construction of the building without some relief.

Commissioner Hosé inquired as to the specific timing, and referenced the November 2014 plan application.  Mr. Mitchell said he met with the Planning Department in November 2014, and learned in May 2015 that the Ordinance had changed.  Mr. Mitchell said he designed a building with a different fee structure in mind.  He noted that the Park District recently auctioned off land, and he suggested that it was less than the $540,000 per acre.  He doesn't think his company is making a greedy request.  He recognizes that the Ordinance is updated occasionally, and in this case they were unlucky with timing.  The Ordinance says that they have the ability to come to the Council and request a reduction, and he asked that the Council consider it.

Commissioner Hosé then asked what types of properties were used to calculate the $500,000+ cost.  Mr. Fieldman said they looked at the residential property values in all the quadrants throughout the Village.  Commissioner Hosé then said that he is not convinced that this is the type of space envisioned in the Ordinance with regard to provision of recreational space; however, he is also not sure that there are not other avenues to consider.  If the formula is flawed, he thinks the Council should consider this, or if the formula is a barrier to development in the Village, the Council should also consider it.

Commissioner Waldack said he has a very difficult time making exceptions, and if the Council does so they will have a line of people saying they are different and should get money back.  He agreed that if the formula is flawed, then it should be changed retroactively.  He does not want to set a precedent that will bring developers with a myriad of reasons as to why they should have an exception.  He said that the particular amenities being included are not open to the public, but are a sales pitch to prospective residents of the development.  It is a private gain, and he has a lot of questions and considerations to review. 

Commissioner Hosé said that he didn't mean that the formula was "flawed" but if it should be updated or there is a better way to calculate it, that should be done.

Commissioner Barnett commented that the Village changed the rules midstream driven by the market, and because those rules had not been changed for a very long time this was much more expensive than anyone would have expected.  He is less sympathetic to the recreational space referenced by this developer, but this is a big differential.  He thinks there is a narrow case to be made.

Mr. Fieldman said that Holiday Properties owned the site and there was a meeting in November 2014 when they expressed concerns about costs.  He said he told them that the Village was contemplating the change that would result in a substantial fee increase.  For the entire time they were contemplating an apartment type of development.

Commissioner Olsen said that Commissioner Barnett's comments were compelling to him and they should obviously update this more often.  The formula is a couple of years old and he doesn't see the need to reinvestigate the entire thing.  However, he understands Commissioner Barnett's point.  He is sympathetic to the fact that when the developer came before the Council with their plans they had already put a lot of effort in preparing their plans and doing all of the preliminary work.  This case possesses a unique situation that is not precedential. The site is important to the community, and he wants to do what they can to make this work.  Commissioner Olsen commented that the Village is setting expectations, and expectations are important here.  He agrees with Commissioner Barnett that this is a unique situation.  Saying to the developer that there may be a "significant" increase back in 2014 could mean many things.  In his business a "significant increase" could mean an increase of 10 or 20 percent.  He asked how that works with the Village's Ordinance.

Mr. Fieldman replied that there are two issues. The Subdivision Ordinance allows for this request. The Village would have to follow up with an amendment to the ordinances that approved this development and specified the fees.    They would affect only this development.

Commissioner Vattimo agreed that the developer makes a compelling argument, and she thinks they need to look at this project closely.  She also agrees with Commissioners Barnett and Olsen that this should be given strong consideration and be discussed further.

Commissioner Waldack asked how unique this situation really is.  He asked how many projects were in the process when this came forward initially.  Mr. Fieldman said that with developers holding title to the land, it would be a very short list.  Commissioner Waldack said he would like to see the short list.

Commissioner White asked whether other petitioners have asked for a reduction in the donation before, and Ms. Petrarca and Mr. Fieldman said in their experience they have not seen this type of request brought forward.

Mayor Tully asked whether this is the only procedural venue by which this relief can be requested.  Ms. Petrarca said she believes so.

The Mayor then commented about the pool deck contemplated at Main and Maple, and whether there is a similar request being made for that.  The Mayor discussed "recreational facilities" and asked for an explanation of what is meant by that term in this context.  He noted that the petitioner is not asking to change the calculation of fees.  Since this has never been done before it suggests that they need more information to make an informed decision as to what is meant. 

Mayor Tully then spoke about issues that may affect future economic development downtown or elsewhere.  He said that if they look at the Ordinance they should look at the ability to make changes to the schema to redistribute some of the fees to perhaps cover other issues.

1. Dr. Goodman, 5834 Middaugh, commented that he's been asking for about 20 years for the Village to revise the nominal value of an acre of land in Downers Grove.  He agrees that it would be reasonable to revise this more often, based on 20/20 hindsight.  He noted that this is an important economic component of the TIF district.  The Village has substantial economic interests in making sure that this venture moves forward, and they may want to look for various ways to subsidize this but not at the e